Gilmore v. State

• Decision Date: 22 June 1893
• Citation: 99 Ala. 154,13 So. 536
• Parties: GILMORE v. STATE.
• Court: Alabama Supreme Court

13 So. 536

99 Ala. 154

GILMORE v. STATE.

Supreme Court of Alabama

June 22, 1893

Appeal from circuit court, Pike county; J. R. Tyson, Judge.

Lum Gilmore was convicted of burglary, and appeals. Reversed.

The testimony for the state tended to prove that the defendant Gilmore, had broken into a house of one James E. Moore; that Mrs. Moore, who was awake, discovered the defendant in the room, screamed, and the defendant ran off. The testimony for the state further tended to show that it rained on the night before the burglary was committed, and that tracks which corresponded to tracks made by the defendant on the day after the burglary were found leading to and from the house, in the direction of, and within a very short distance from, the defendant's house. The rulings on the evidence are sufficiently shown in the opinion. The defendant requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them, as asked: (1) "The jury in this case have nothing to do with the existence of Jesus Christ, nor the manner in which His existence could be proved, but they must try the case on the facts of case." (2) "There is no evidence in this case of the existence of Jesus Christ the jury are not trying any such issue; and the pert allusions of the attorney attempting to prosecute the case are not evidence, and cannot have the slightest weight, in the case." (3) "The evidence against the defendant in this case is partly circumstantial, and his innocence should be presumed by the jury until his guilt is established by evidence, in all the material aspects of the case, beyond a reasonable doubt, and to a moral certainty." (6) "The evidence against the defendant in this case is partly circumstantial, and his innocence must be presumed by the jury until the case is proved against him, in all its material circumstances, beyond a reasonable doubt. That to find him guilty, as charged, the evidence must be strong and cogent; and unless it is so strong and cogent as to show the defendant's guilt to a moral certainty, they must find the defendant not guilty." (8) "The court further charges the jury, as to footprints, that where no peculiar marks are observed, but the correspondence thus proved is merely in point of superficial shape, outline, and dimensions, and those of the ordinary character, it may serve to confirm a conclusion established by independent evidence but cannot be, in itself, safely relied on, on account of the general resemblance known to exist among the feet and shoes of persons of the same age and sex." (10) "The court further charges the jury that before they should convict the defendant the hypothesis of his guilt should flow naturally from the facts proved, and be consistent with them all." (12) "The court further charges the jury that in criminal prosecutions the evidence should be such as to exclude a rational probability of innocence, to justify conviction." (13) "The humane provision of the law is that upon the evidence there should not be a conviction unless, to a moral certainty, it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure of proof the law requires." (14) "The only just foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt, and to a moral certainty, that the defendant is guilty as charged in this indictment, to the exclusion of every probability of his innocence, and every reasonable doubt of his guilt; and if the prosecutor has failed to furnish the aforesaid measure of proof, and to impress the minds of the jury with such belief of the defendant's guilt, the jury should find him not guilty." (15) "The jury are instructed that the evidence in this case is not sufficient for the jury to find that the defendant entered this house with the intent to commit a rape." (16) "If the jury believe the evidence, they will find the defendant not guilty." (17) "The court further charges the jury that, under the evidence in this case, they should not find that the defendant entered that house with the intent to commit a rape." (20) "The court further charges the jury that there is no evidence before the jury that there were any goods or clothing-things of value-kept for use, sale, or deposit in said house, and unless they are satisfied from the evidence, beyond a reasonable doubt, and to a reasonable certainty, that the defendant entered said house with the intent to commit a rape, they should find the defendant not guilty."

R. L. Williams, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

HEAD J.

The indictment, which is for burglary of a dwelling house contains the unnecessary averment that goods or clothing-things of value-were kept in the house for use, sale, or deposit. This averment is clearly one descriptive of the house,...